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The Cato Institute and Institute for Justice filed an Amicus brief today in the Fourth Circuit Court of Appeals supporting the Megaupload defendants' request for rehearing en banc to reverse findings of Fugitive Disentitlement.

The panel’s construction of 28 U.S.C. § 1355 expands federal jurisdiction and fundamentally alters the nature of a long standing doctrine of American law— in rem jurisdiction—with no clear statement from Congress. In addition, the panel’s construction raises serious doubts as to the constitutionality of the statute ignoring this court’s precedent. Further, the panel compounds this mistake by upholding 28 U.S.C. § 2466, which unconstitutionally cuts off the right to an essential constitutional protection—the due process of law—creating dangerous incentives for abuse by law enforcement...

...With the broad expansion of jurisdiction the panel adopted, the government’s elimination of due-process rights via the fugitive-disentitlement doctrine is alarming. Under the panel’s reading, anyone who has ever been online and happened to have payments routed through American servers could be subject to U.S. jurisdiction. Couple this de facto universal jurisdiction with the ability to invoke fugitive disentitlement in civil forfeiture proceedings, and this court could ratify a dangerous mix of perverse incentives and unchecked government profiteering. These concerns are hardly speculative. Over the course of the past two decades, it has become clear that forfeiture abuse is directly tied to whether law enforcement agencies and officials can profit from the seizures. This court should not make it easier for further misuse to occur. See Marian R. Williams, Jefferson E. Holcomb, et. al, Policing for Profit, Institute for Justice (Nov. 2015).

The Supreme Court has only ratified the use of fugitive disentitlement in criminal appeals for certain limited purposes. Because those purposes can’t be extended to fugitive disentitlement in civil forfeiture proceedings, § 2466 serves no purpose except to strip claimants of due-process rights.